Tilton v. Reclamation Dist. No. 800

• Citation: 142 Cal.App.4th 848,48 Cal.Rptr.3d 366
• Decision Date: 15 August 2006
• Docket Number: No. A112185.,A112185.
• Court: California Court of Appeals
• Parties: Wes and Shirley TILTON, as Trustees, etc., et al., Plaintiffs and Appellants, v. RECLAMATION DISTRICT NO. 800, Defendant and Respondent.

48 Cal.Rptr.3d 366

142 Cal.App.4th 848

Wes and Shirley TILTON, as Trustees, etc., et al., Plaintiffs and Appellants, v. RECLAMATION DISTRICT NO. 800, Defendant and Respondent.

No. A112185.

Court of Appeal, First District, Division 2.

August 15, 2006.

Garret David Murai, Aiken, Kramer & Cummings, Inc., Oakland, CA, for Plaintiffs and Appellants.

Debbie Jean Vorous, Downey Brand LLP, Sacramento, CA, for Defendants and Respondents.

HAERLE, J.

I. INTRODUCTION

Appellants¹, the owners of two parcels of property in Contra Costa County's Discovery Bay community, filed suit against the respondent District, which had previously repaired a levee on the properties. Via two separate orders, one relating to appellants' initial complaint, and the second relating to its amended complaint, the superior court sustained demurrers to six of the seven causes of action alleged by appellants without leave to amend. It also sustained the District's demurrer to another cause of action alleged in appellants' amended complaint, albeit with leave to amend, Appellants opted not to amend their complaint, instead dismissing it with prejudice. Appellants appeal, contending the trial court was incorrect in the legal bases upon which it sustained, without leave to amend, the District's demurrers to its six causes of action. They also appeal from the trial court's order granting special demurrers and a motion to strike filed by the District. We shall affirm the judgment of dismissal.

II. FACTUAL AND PROCEDURAL BACKGROUND

As noted, appellants, as Trustees of the Tilton Family Trust, are the owners of two residences and parcels built on an "urban levee" which lies within the jurisdictional boundaries of respondent District.² The District was alleged to be (1) a reclamation district formed pursuant to Water Code section 50000 et seq., (2) a governmental entity located in Contra Costa County, and (3) pursuant to Water Code section 50652, responsible for supervising the maintenance and operation of reclamation works within its boundaries.

In June 2003, appellants allegedly learned from a report prepared by the District's engineer that, in 1985 and either 1997 or 1998, there had been failures in the levee underlying the property, failures which had caused damage to the property. They also alleged that, in 2003, the levee on the lots failed again, causing further damage to them. Appellants alleged that the 1985 failure was due to improper maintenance of the levee by the District, and that both the 1997/1998 and 2003 failures were caused either by riprap placed on top of the levees which caused instability therein and/or the failure of the District to properly stabilize the levee after the earlier failures. Appellants alleged that, as a result of these three failures, the rear of the homes on the two lots "are pulling away from the structures" and that "the structures themselves have become un-level and there is fear that [the lots] are slowly sliding into the bay."

In September 2003, appellants submitted a claim for damages allegedly owing from the District pursuant to the Tort Claims Act, Government Code section 810 et seq. The District denied the claim in May 2004. In November 2004, appellants filed their first complaint against the District; it consisted of seven causes of action for inverse condemnation, negligence, trespass, nuisance, failure to provide lateral and "subjacent" support, maintaining public property in a dangerous condition, and a violation of 42 United States Code section 1983.

The District demurred to all causes of action, and the issues raised thereby were fully briefed and argued to the trial court. On April 25, 2005, it sustained the District's demurrer without leave to amend as to the inverse condemnation and section 1983 causes of action, but with leave to amend as to the remainder. Four days later, appellants filed their amended complaint, this time realleging only the five causes of action as to which it was granted leave to amend, namely: (1) negligence, (2) failure to provide lateral and subjacent support, (3) nuisance, (4) trespass, and (5) dangerous condition on public property. They sought to recover an amount in excess of $1 million.

The District again demurred and the issues raised were again fully briefed and argued to the trial court. On July 29, 2005, that court sustained the general demurrer without leave to amend as to the first four causes of action on the ground that the appellants had failed to plead a statutory basis for the District's liability under Government Code section 815.6, i.e., that none of the statutes alleged by appellants imposed a mandatory duty upon the District. As to appellants' fifth cause of action, the trial court sustained the District's demurrer, but this time with leave to amend. It also granted a motion to strike filed by the District. In so doing, it ruled that (1) appellants had failed to comply with Code of Civil Procedure section 425.16 regarding their damage claim, (2) appellants had failed to indicate the amounts of general and special damages being sought, and (3) to the extent appellants were seeking damages for the alleged 1985 and 1997/1998 damage to their lots, the claim was barred by the statute of limitations set forth in Government Code section 911.2 because of appellants' failure to plead "facts showing their inability to have made earlier discovery despite reasonable diligence."

On August 5, 2005, appellants filed a request for dismissal of their fifth cause of action with prejudice, which request was granted on August 10, 2005. On August 12, 2005, a judgment of dismissal of the entire action was entered in favor of the District, with the District being awarded its costs. Appellants filed a notice of appeal on October 11, 2005.

III. DISCUSSION

In reviewing a lower court's ruling sustaining a demurrer, our standard of review is, of course, de novo. As our Supreme Court has recently held: "When reviewing a judgment dismissing a complaint after the granting of a demurrer without leave to amend, courts must assume the truth of the complaint's properly pleaded or implied factual allegations. [Citation.] Courts must also consider judicially noticed matters. [Citation.] In addition, we give the complaint a reasonable interpretation, and read it in context. [Citation.] If the trial court has sustained the demurer, we determine whether the complaint states facts sufficient to state a cause of action. If the court sustained the demurrer without leave to amend, as here, we must decide whether there is a reasonable possibility the plaintiff could cure the defect with an amendment. [Citation.] If we find that an amendment could cure the defect, we conclude that the trial court abused its discretion and we reverse; if not, no abuse of discretion has occurred. [Citation.] The plaintiff has the burden of proving that an amendment would cure the defect. [Citation.]" (Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1081, 6 Cal.Rptr.3d 457, 79 P.3d 569.)

A. The demurrer was properly sustained to appellants' two "taking" causes of action.

In their briefs, the parties first discuss the correctness of the trial court's ruling sustaining the District's demurrers, without leave to amend, to the causes of action for inverse condemnation and the alleged violation of 42 United States Code section 1983 set forth in appellants' initial complaint.³ We will follow the parties' lead and address that issue first, also. And, as they do, we will deal with those causes of action in tanden because, as appellants pled in their initial complaint, the basis of the section 1983 action was alleged to be that the District's "failure to properly maintain the levee upon which [appellant's] Property is located constitutes a taking in violation of 42 U.S.C. [section] 1983." This is substantively the same allegation appellant made in its inverse condemnation cause of action in the same initial complaint.

We agree with the trial court that, as pled, these causes of action fail to state a claim in either inverse condemnation or for a "taking" of private property for a public use. This conclusion derives, at least in part, from our Supreme Court's decision in Customer Co. v. City of Sacramento (1995) 10 Cal.4th 368, 41 Cal.Rptr.2d 658, 895 P.2d 900 (Customer Co.). In that case, the court held that the defendant City of Sacramento could not be liable in inverse condemnation for allegedly extensive property damage caused to a grocery and liquor store when the police fired tear gas into the store in an effort to capture an apparently armed and dangerous felony suspect. (Id. at p. 371, 41 Cal.Rptr.2d 358, 895 P.2d 900.) In the course of so holding, the court discussed extensively the breadth and limits of the inverse condemnation principle. The decision especially addressed the impact of the term "or damaged" as used in the opening sentence of article I, section 19, of the California Constitution: "Private property may be taken or damaged for public use only when just compensation, ascertained by a jury unless waived, has first been paid to, or into court for, the owner." (Cal. Const., art. I, § 19, emphasis added.) In an extended opinion by now-Chief Justice George, the court effectively held that the 1879 addition of the term "or damaged" to the former just compensation provision of the constitution "was not intended to expand the scope of the constitutional compensation provision beyond the ambit of eminent domain and public improvements. It appears, instead, that the words `or damaged' were added to clarify that the government was obligated to pay just compensation for property damaged in connection with the construction of public improvements, even if the government had not physically invaded the damaged property." (Customer Co., supra, 10 Cal.4th at p. 379, 41 Cal.Rptr.2d 658, 895 P.2d 900, emphasis added.)

In support of this interpretation of the 1879 amendment, the court stated: "It...